Progressive Southeastern Insurance Co. v. Gregory Smith and Nolan Clayton, and Erie Insurance Group, Brackett Restaurant Group, LLC, d/b/a Stacked Pickle, and Allstate Insurance Company

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OPINION ON REHEARING FILED Mar 04 2020, 9:56 am CLERK Indiana Supreme Court Court of Appeals and Tax Court ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Margaret M. Christensen GREGORY SMITH Karl L. Mulvaney Ann Marie Waldron Dentons Bingham Greenebaum LLP Waldron Law, LLC Indianapolis, Indiana Indianapolis, Indiana Michael E. Simmons Hume Smith Geddes Green & Simmons, LLP Indianapolis, Indiana Robert P. Thomas Thomas Law Office Indianapolis, Indiana ATTORNEY FOR APPELLEE NOLAN CLAYTON William D. Beyers Buchanan & Bruggenschmidt, P.C. Zionsville, Indiana IN THE COURT OF APPEALS OF INDIANA Court of Appeals of Indiana | Opinion on Rehearing 19A-PL-1094 | March 4, 2020 Page 1 of 3 Progressive Southeastern March 4, 2020 Insurance Co., Court of Appeals Case No. Appellant-Plaintiff, 19A-PL-1094 Appeal from the Marion Superior v. Court The Honorable Timothy W. Gregory Smith and Oakes, Judge Nolan Clayton, Trial Court Cause No. Appellees-Defendants 49D02-1701-PL-2865 and Erie Insurance Group, Brackett Restaurant Group, LLC, d/b/a Stacked Pickle, and Allstate Insurance Company Defendants Baker, Judge. [1] We grant the petition for rehearing filed by Gregory Smith for the limited purpose of correcting a factual error on page 7 of our opinion. We stated that “Progressive filed a motion to consolidate the appeals,” but, in fact, it was Smith who filed the motion to consolidate. Progressive S.E. Ins. Co. v. Smith, No. 19A-PL-1094, slip op. p. 7 (Ind. Ct. App. Jan. 2, 2020). [2] As to the other issue raised by Smith in his petition for rehearing, we decline to grant his requested relief because his concern—that even if Progressive did not have a duty to defend Clayton, if it undertook his defense, it had a duty to do so Court of Appeals of Indiana | Opinion on Rehearing 19A-PL-1094 | March 4, 2020 Page 2 of 3 competently and in good faith—is addressed in footnote 7 of our original opinion: The fact that Progressive did not have a duty to defend Clayton is not relevant to the questions at issue in the Malpractice or Bad Faith Actions related to the quality of the defense provided. Id. at 10 n.7. Therefore, aside from the factual correction described above, we deny the petition for rehearing. Bailey, J., and Tavitas, J., concur. Court of Appeals of Indiana | Opinion on Rehearing 19A-PL-1094 | March 4, 2020 Page 3 of 3